Unit 1 - Introduction to Legal Method PDF

DEFINITION OF LAW, ITS KINDS AND CLASSIFICATIONS Meaning and Definition of Law Nature or Basic Features of Law Functions/Purposes of Law Advantages and Disadvantages of Law Kinds/Classification of Law Law, Morality and Justice Introduction: The term ‘law’ d...

DEFINITION OF LAW, ITS KINDS AND CLASSIFICATIONS Meaning and Definition of Law Nature or Basic Features of Law Functions/Purposes of Law Advantages and Disadvantages of Law Kinds/Classification of Law Law, Morality and Justice Introduction: The term ‘law’ denotes different kinds of rules and principles. Law is an instrument which regulates human conduct or behaviour. Therefore, Law is a broader term which includes Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgment, Orders of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc. Meaning of Law: The term law has been derived from the Latin term ‘Legam’ which means the body of rules. The term law has been derived from the Latin term ‘Legam’ which means the body of rules. LAW= DERIVED FROM LATIN WORD = LEGAM = BODY OF RULES Law in Hindu religion or jurisprudence = ‘Dharma’, Law in Islamic religion = ‘Hukum’, Law in Romans = ‘Jus’ Law in France = ‘Droit’, and Law in Germany = ‘Richt’. All these words convey different meaning. Thus, the term law has different meanings in different places/societies at different times as it is not static and it continues to grow. For example:- Law varies from place to place in the sense that while adultery is an offence in India under Section 497 of IPC, it is not an offence in America. Further, law differs from religion to religion in the sense of personal laws, e. a Muslim man can have four wives at a time, but a Hindu can have only one wife living at a time. If a Hindu marries during the lifetime of first wife he is declared guilty of the offence of bigamy under section 494 of IPC. Generally, the term law is used to mean three things: o Legal Order: Firstly, it is used to mean ‘legal order’. It represents the regime of adjusting relations, and ordering conduct by the systematic application of the force of organized political society. o Legal Precepts: Secondly, law means the whole body of legal precepts which exists in an organised political society. o Official Control: Thirdly, law is used to mean all official control in an organised political society. Definitions of Law: It is very difficult to define the term law. Various jurists have attempted to define this term. Some of the definitions given by jurists in different periods are categorized as follows: (i) Idealistic Definitions: Romans and other ancient jurists defined law in its idealistic nature. According to Salmond, “the law may be defined as body of principles, recognised and applied by the State in the administration of justice”. According to Gray-, “the law of the state or of any organised body of men is composed of the rules which the courts, that is the judicial organ of the body lays down for the determination of legal rights and duties.” (ii) Definitions of Positivists: Austin: Austin defined law as a command of sovereign backed by sanction. According to him there are three elements of law, i.e command, duty sanction. Thus, every law have a command and due to this command we have a duty to obey this command and if don’t obey this command, then there is a sanction. H.L.A. Hart: He defined law as a system of rules- the primary and secondary rules. · Nature or Basic Features of Law: Law may be described as a normative science, that is, a science which lays down norms and standards for human behaviour in a specified situation or situation enforceable through the sanction of the state. The concept of law may be understood by analysing the features common to all laws. Among these features, the ones considered as essential or basic include:- (i) Generality:- Law is a general rule of conduct. It does not specific the names of specific persons or behaviours. Its generality is both in terms of individuals governed and in terms of the social behaviour controlled. The extent of the generality depends upon on whom the law is made to be applicable. For example:– a. Everyone has the right to life, liberty and security of a person under Article 3 of the Universal Declaration of Human Right (UNDHR). This law is made applicable to everyone on this world, therefore, it is universal. b. The State shall not deny to any person equality before law or the equal protection of laws within the territory of India (Article 14 of the Constitution). This law is applicable to every person residing in India, therefore, it is national in character. (ii) Normativity:- Law does not simply describe or express the human conduct it is made to control, but it is created with the intention to create some norms in the society. Law creates norms by allowing, ordering or prohibiting the social behaviour. Under this heading, law can be classified as follows:- Permissive Law:- It allows or permits subjects to do the act they provide. E., every person who is arrested has a right to be produced before the nearest Magistrate within a period of 24hr. of his arrest. The term “has the right” used in this provision shows that subject is given the right. So it is permissive law. Directive Law:- It orders, directs, or commands the subjects to do the act provided in the law. It is not optional. E., if there is a contract between the parties that any particular act must be performed by the parties themselves, then they must perform it personally. This is a directive law. Prohibitive Law:- It discourages the subject from doing the act required not to be done. All criminal laws are usually prohibitive laws. E., no one should enter the property of another person against the will of that person. (iii) Sanction:- Each and every member of society is required to follow the laws. Where there is a violation of law, sanction should follow. The term sanction is derived from the Roman word “Sanctio” which means that part of the statute which imposes a penalty or has made some other provision for its enforcement. In general sanction means ‘penalty’. Definitions of Sanction a) Salmond defined sanction as an instrument of coercion by which any system of imperative law is enforced. The state uses its physical force as a sanction for the administration of justice. (b) According to Friedrick Pollock, sanction is modern sense means constant readiness of the state to use its force for ensuring justice to be done to both i.e., for law abiding person as also to the evil doer. Kinds of Legal Sanction:- Hibbert has classified legal sanctions under two broad headings · Whether Sanction is an Essential element of Law? Legal thinkers or jurists are not unanimous on this point whether sanction is an essential element of law. Some believe that it is an essential element while others believe that it is not essential Functions/Purposes of Law The law serves many purposes and function in society. Many jurists have expressed different views about the purpose and function of law. For example: According to Holland: “the function of law is to ensure well being of the society.” Thus it is something more than an institution for the protection of individual’s rights. According to Roscoe Pound: there are mainly four functions to law, i.e. (a) maintenance of law and order in the society; (b) to maintain status quo in society; (c) to ensure maximum freedom of individuals; and (d) to satisfy the basic needs of the people. According to Salmond, “the object of law is to ensure justice. This justice may be distributive or corrective. Distributive justice seeks to ensure fair distribution of social benefits among the members of the community and corrective justice seeks to remedy the wrong”. The following are the major functions or purposes of law: Establishing Standards: The law is a guidepost for minimally acceptable behaviour in society. Some acts, e., are crimes because society (through legislative body) has determined that it will not tolerate certain behaviours that injure or damage persons or their property. (for example, it is a crime to cause physical injury to another person without justification, as it is generally constitutes the crime of assault). Maintaining Order: Some semblance of order is necessary in a civil society and is therefore reflected in law.  Resolving Disputes: Disputes are unavoidable in a society made of persons with different needs, wants, values and views. The law provides a formal means for resolving disputes – the court system. Protecting Freedoms and Rights: Every person has some fundamental freedoms and rights and it is the function of law to protect these freedoms and rights from violations by persons, organisations or government. (For example, subject to certain exception, there is a fundamental right of equality before law, i. every person is equal in the eyes of law and if any person feels that his fundamental right is violated may approach the court for remedy.) Theories Of the Functions of Law Different people have suggested different functons of the law in the society. But these various functons of law can be categorized according to the following theories: 1. Consensus Model 2. Conflict or Pluralist Model 3. Open Model 4. Marxist Theory 1. The Consensus Model This theory perceives law as protecting the societys shared beliefs or social values to which “everyone in the society subscribes. According to this theory, the society is unitary having monolithic and universally shared value system. Therefore, conflicts that may be in such society are on a personal level. 2. Conflict or Pluralist Model: The law operates to harmonize conflicting This theory denies that there is a shared value system in the society. Rather it contends that there exists conflicting groups, all of which are assumed to have equal bargaining powers such that the constant interaction between them helps to attain social stability and equilibrium. Under this theory, the state is a neutral arbiter providing only the machinery for conflict settlement either through political debate or policy making. So, the law is used as tool for harmonizing conflicting groups. 3. Open Model According to this model, conflicts in society are between interest groups and can be resolved through Negotaton Arbitraton Litgaton Electoral process, etc. without necessarily resulting to revolution. 4. The Marxist Theory According to Karl Marx, primitive societies were free from antithesis or conflicts. That the law was introduced as a tool of exploitation by the ruling class over the working class. This status quo will continue as long as confrontation is avoided. Revolution is however the only effective way of dethroning the ruling class and enthroning the working class. It is believed that only then will equality be restored in the society. Advantages and Disadvantages of Law: As law is a dynamic concept and is instrument of bringing about desired social change in the society. Its advantages are many but there are certain disadvantages as well. Kinds/Classification of Law As stated earlier, the term ‘law’ is used in different senses. It denotes different kinds of rules and principles. The jurists have classified law according to their own legal perception. · Salmond’s Classification of Law: Salmond has referred to eight kinds of laws. These are:- (1) Imperative Law: It means ‘a rule which prescribes a general course of action imposed by some authority which enforces it by superior power either by physical force or any other form of compulsion. He further divided imperative law into two types: (i) Divine law: It consists of the commands imposed by God upon men either by threats of punishment or by hope of his blessings. (ii) Human law: Human laws are the laws by analogy. It is further divided into four different kinds:- · Civil law: imperative law imposed and enforced by State is called civil law. · Moral Law: imperative law imposed and enforced by members of society is moral law. · Autonomic law: those enforced and enforced by different institutions or autonomous bodies, like universities, airline companies etc. International law: those imposed upon State by the society of States and enforced partly by international option and partly by the threat of war. (2) Physical or Scientific Law: Physical laws are laws of science which are expression of the uniformities of nature. They are not created by human and can’t be changed by human. They are invariable forever. The examples of physical law are the law of gravity, law of air pressure etc. Natural or Moral Law: Natural law is based on the principles of right and wrong. It also called universal or eternal law, rational law. It embodies the (1) principles of morality and is devoid of any physical compulsion. Many laws of the modern time are founded on the basis of natural law. E. law of quasi contract, the conflict of law, law of trust etc. are founded on natural justice. (2) Conventional law: It is the body of rules or system of rules agreed upon by persons for their conduct towards each other. E., international law and rules of club or cooperative societies, rules of game or sport are best examples of conventional law. (3) Customary law: There are many customs which have been prevalent in the community from time immemorial even before the States came into existence. They have assumed the force of law in course of time. (e. under hindu personal law, a man can’t marry his brother’s widow, however, if there is any custom which allows the same then the marriage will be valid). According to Salmond, “any rule of action which is actually observed by men when a custom is firmly established, it is enforced by State as law because of its general approval by the people. (4) Practical or Technical Law: Practical laws are the rules meant for a particular sphere by human activity, e. laws of health, laws of architecture. (5) International law: It also knows as law of nations as it applies to States rather than individuals. It consists of rules which regulate relations between the States inter-se. (6) Civil Law: The law enforced by the State is called civil law and it contains sanction behind it. Civil law is territorial in nature as it applies within the territory of the State concerned. Civil law differs from special as the latter applies only in special circumstances. Austin’s Classification of Law John Austin has classified law into following categories Divine Law Human Law Positive Morality He treats only divine law and human law as law in real sense of the term and does not consider positive morality as law since it lacks sanction or binding force. Holland’s Classification of Law: He classified law according to their functions. He classified law into following five categories. 1. Private and Public law: Private law determines relationship between person and person where as public law deals with relationship between person and the State. In private law, State is only the enforcing authority while in public law, State is an interested and enforcing party. Examples of private law: laws of property, contracts, torts, trusts etc.are instances of private law. Example of public law: law of crimes, Public law is further divided into two parts: (a) Constitutional law: constitutional law includes all rules which directly or indirectly affect the distribution or exercise of the sovereign power of the State. It is the body of those legal principles which determines the Constitution of State. (b) Administrative law: it describes in detail the manner in which the government shall exercise those powers that were outlined in the constitutional law. 2.General and Special Law: The territorial law of a country is called General Law. For example, Indian Penal Code, Indian Contract Act are the general laws of the country because they have general application throughout the territory of India. Besides the general law, there are certain kinds of special laws. E. laws applicable to particular locality (the Punjab Police Act etc.). 3.Substantive and procedural law: Substantive law is that law which defines a right while procedural law determines the remedies. Substantive law is concerned with ends which administration of justice seeks to achieve while procedural law deals with the means by which those ends can be achieved. (E. law of contract, transfer of property, law of crimes etc. are substantive law whereas the Civil Procedure Code or Criminal Procedure Code are procedural laws. 4.Antecedent and Remedial Law: Antecedent law relates to independent specific enforcement without any resort to any remedial law. (e., law relating to specific performance of a contract is the best example of antecedent law). The remedial law provides for the remedy. (e. Law of torts, writs etc. come within the category of this law) 5.Law in Rem and Law in Personam: Law in rem relates to enforcement of rights which a person has against the whole world or against the people in general where as law in personam deals with enforcement of rights available against a definite person or persons. (E. law of inheritance, succession, ownership etc. are subject matter of law in rem, while the law of contract, trust etc. are examples of law in personam). Law, Justice and Morality Law, justice, and morality are foundational concepts that underpin the functioning of societies. While they are interconnected, they are not synonymous. The law represents a system of rules and regulations a governing authority establishes. Justice embodies notions of fairness, equality, and ethical rightness. Morality encompasses principles of right and wrong conduct, often shaped by cultural, religious, and philosophical beliefs. The coexistence of law, justice, and morality forms the cornerstone of a just and equitable society. While they are interconnected, each concept maintains its distinctiveness. Law entails a system of established rules, justice embodies fairness, and morality encompasses ethical principles. The Essence of Law: Law serves as a structured framework of rules and regulations established by governing bodies to maintain order, resolve disputes, and protect individual and collective rights. It provides a sense of predictability and consistency in a society, enabling individuals to understand their rights and responsibilities. Legal systems vary across cultures and regions, reflecting unique historical, cultural, and societal contexts. While laws are formulated by legislative bodies, their enforcement and interpretation often fall within the purview of judicial systems. The Pursuit of Justice: Justice, a concept deeply ingrained in human consciousness, embodies notions of fairness, equality, and equitable treatment. It strives to ensure that individuals receive their due rights and that wrongs are rectified. Justice transcends legal frameworks, encompassing broader social, economic, and political dimensions. It serves as a moral compass, guiding decisions that aim to create a just society. However, the interpretation of justice can be subjective and influenced by cultural, religious, and philosophical perspectives. The Moral Compass of Morality: Morality refers to a set of ethical principles and values that guide human behaviour based on notions of right and wrong. It encompasses a wide spectrum of beliefs and practices shaped by cultural, religious, and philosophical traditions. Morality often influences the formulation of laws by reflecting the values held by a society. While the law is a formalized structure, morality operates on a more personal and collective level, influencing individuals’ everyday choices and interactions. THE INTRICATE RELATIONSHIP BETWEEN LAW AND JUSTICE The relationship between law and justice is multifaceted, with the law often serving as a mechanism to uphold principles of justice within a society. Laws are established to provide a structured framework that governs human behaviour, resolves disputes, and promotes fairness and equality. The goal is to ensure that individuals are treated justly and that their rights and responsibilities are protected. However, the alignment between legal frameworks and the ideals of justice is not always straightforward, leading to instances where legal decisions might not be perceived as just. Upholding Principles of Justice: Laws are typically crafted with the intention of promoting justice. They outline rights, responsibilities, and procedures to ensure that individuals are treated fairly and equitably. Laws establish mechanisms for addressing harm, providing restitution, and holding wrongdoers accountable. For example, criminal laws dictate the consequences for illegal actions, and contract laws uphold agreements between parties. These legal mechanisms are designed to prevent chaos and promote a harmonious society based on principles of fairness. Ensuring Fairness and Equality: Justice is often associated with the notions of fairness and equality. Laws play a pivotal role in ensuring that individuals are treated equally before the law, regardless of their background, status, or identity. Anti-discrimination laws, for instance, aim to eliminate biases and protect marginalized groups from unequal treatment. Additionally, laws that guarantee due process and a fair trial contribute to the notion of justice by ensuring that legal procedures are transparent, impartial, and respectful of individual rights. THE ROLE OF MORALITY IN LAW AND JUSTICE Morality plays a significant and complex role in shaping both the principles of law and the administration of justice within a society. While law and justice are distinct concepts, they are deeply intertwined with moral considerations that influence the creation, interpretation, and application of laws, as well as the pursuit of equitable outcomes. 1. Shaping Legal Frameworks: Morality serves as a foundational influence in the creation of legal frameworks. Societal moral values often dictate the norms and behaviours that laws should regulate. Laws prohibiting actions widely considered immoral, such as theft and murder, reflect the alignment of legal norms with prevailing moral standards. Similarly, laws protecting human rights and ensuring social welfare are often rooted in ethical principles that prioritize human dignity and well- being. 2. Guiding Ethical Decision-Making: Legal professionals, including judges and lawyers, are often confronted with ethical dilemmas when interpreting and applying the law. Moral considerations guide these professionals as they navigate complex cases and balance legal statutes with broader ethical concerns. Their decisions reflect a commitment to achieving justice while adhering to their own moral compass and societal expectations. 3. Balancing Individual Liberties and Societal Interests: Morality contributes to the ongoing discourse on the limits of personal freedoms and the collective good. Laws that restrict certain behaviours, such as limiting free speech to prevent hate speech, embody moral judgments about the balance between individual rights and the well-being of society. Such laws aim to strike a balance between individual autonomy and the ethical responsibility to prevent harm to others. 4. Moral Challenges to Unjust Laws: Morality can serve as a catalyst for challenging unjust laws. Civil rights movements, for example, have highlighted the moral incongruence of discriminatory laws with principles of justice and equality. Morally motivated activists have sought legal reform and transformation to align laws with a broader sense of justice. NAVIGATING THE BALANCE BETWEEN JUSTICE AND MORALITY The decision-making process within legal systems demands a delicate balancing act between the pursuit of justice and the influence of personal and societal morals. Judges and legal practitioners find themselves at the crossroads of interpreting and applying laws while addressing the ethical dimensions of cases. This intricate interplay highlights how justice and morality intersect within the realm of jurisprudence. Impact of Personal and Societal Morals: Judges’ decisions often reflect a complex interplay of personal and societal morals. Personal beliefs can shape their perspectives on cases, impacting how they interpret laws and assess evidence. Societal moral values also exert pressure on judges, as they are tasked with aligning their judgments with the ethical norms prevalent in their communities. Balancing these factors while ensuring impartiality is a formidable challenge.